@StateDept Updates List of Personnel Offenses Subject to Discipline, Note Language on Freedom of Expression

Posted: 3:52 am ET
[twitter-follow screen_name=’Diplopundit’]

 

In January 2017, Congress passed the Department of State Authorities Act: Fiscal Year 2017, which introduced new legislative requirements with regard to the Accountability Review Board (ARB) statute. On July 17, the State Department updated three FAM sub-chapters related to standards of appointment and continued employment, and the list of offenses subject to disciplinary action for both the Foreign Service and the Civil Service.

3 FAM 4130 STANDARDS FOR APPOINTMENT AND CONTINUED EMPLOYMENT

Under 3 FAM 4138, the following update has been added:

  • (12) Conduct by a senior official that demonstrates unsatisfactory leadership in relation to a security incident under review by an Accountability Review Board convened pursuant to 22 U.S.C. 4831; or
  • (13) Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.

Note that 3 FAM 4139.3  Freedom of Expression (CT:PER-860;  07-17-2017) (Uniform State/USAID)
(Applies to Foreign Service Employees)
appears to be a new addition. Further note the language here that says “An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service.”

The agencies do not presume to impinge upon any of their employee’s right of expression, but the individual as an employee is obliged to protect or to refrain from unauthorized dissemination of certain types of information which the employee acquires through official duties, such as classified information, privileged financial, commercial, and other business information, and information about individuals protected by 5 U.S.C. 552a (the Privacy Act of 1974).  An employee may be held accountable for unintentional as well as deliberate and unauthorized public expressions whether written or spoken, which, by violating the confidentiality of privileged information, impede the efficiency of the Service.  Such efficiency may be impeded because information appearing insignificant from a security point of view is highly sensitive by virtue of the source or manner in which it was acquired; or because creation of a poor reputation for discretion and security consciousness seriously impairs the trust and confidence the Service normally enjoys with foreign governments and individuals with whom it must deal in candor and mutual confidence.  The Department’s procedures for the expression of dissenting views on official matters are contained in 5 FAM, and for the agencies the prerequisites for public speeches or writing for publication are found in uniform State/USAID regulations in 3 FAM 4170.

Other additions/update to this subchapter includes Habitual Use of Intoxicating Beverages to Excess, Abuse of Narcotics, Drugs, or Other Controlled Substances, Loyalty and Security, and Financial Responsibility.

3 FAM 4370 says: The purpose of this subchapter is to advise employees, supervisors, and managers of some of the types of employee conduct which can result in disciplinary action.  It is intended that this material be required reading for new employees and that it be referred to during briefings on the behavior expected of employees, ethics, the Department’s leadership tenets, etc.  The Department believes that the more employees know and understand their responsibilities and the professional standards by which they are expected to abide, the less likely it is that they will engage in improper behavior that requires disciplinary action.  Disciplinary action is taken only after it has been determined that discipline, rather than less formal action, such as an admonishment, is necessary.

On duty 24 hours a day:  As explained in 3 FAM 4130, the attainment of foreign policy objectives requires the maintenance of the highest standards of conduct by employees of the Foreign Service.  Because of the uniqueness of the Foreign Service, employees serving overseas are considered to be on duty 24 hours a day, seven days a week, and must observe especially high standards of conduct during and after working hours, and when on leave or in travel status.  Accordingly, the commission after work hours of many of the offenses listed here under “Conduct on the Job” would still be punishable if it affects the ability of the individual or the agency to carry out its responsibilities or mission.  No action against a Foreign Service employee should be considered without a careful review of 3 FAM 4130.

The list is not exhaustive, but these are a few marked additions:

  • 40. Dereliction of managerial and supervisory duty by neglecting to carry out personnel management responsibilities, including failure to address conduct or performance problems, failure to complete required performance ratings or reviews, or failure to address a toxic workplace.
  • 50. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring commercial sex.
  • 51.  Sexual Assault (3 FAM 1700)
  • 52.  Violation of regulations or policies (including post policies) regarding the payment or treatment of domestic staff (3 FAM 4128)
  • 53. Failure to maintain records as required in 5 FAM 414.8 paragraph (2)
  • 54. Misconduct or unsatisfactory performance that significantly contributes to the serious injury, loss of life, or significant destruction of property, or the serious breach of security in relation to a security incident, as found by an Accountability Review Board convened pursuant to 22 U.S.C. 4831.

See more 3 FAM 4370 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – FOREIGN SERVICE

The subchapter for the Civil Service appears to be entirely new:

It is impossible to list every possible punishable offense, and no attempt has been made to do this.  Employees are on notice that any violation of Department regulations could be deemed misconduct regardless of whether listed in 3 FAM 4540.  This table of penalties lists the most common types of employee misconduct.  Some offenses have been included mainly as a reminder that particular behavior is to be avoided, and in the case of certain type of offenses, like sexual assault, workplace violence, and discriminatory and sexual harassment, to understand the Department’s no-tolerance policy.

The non-exhaustive list includes 51 offenses with penalties meriting a Letter of Reprimand except for the following:

12. Improper political activity (5 U.S.C. 7321, et seq.) – suspension or removal

35. Violation of the “no strike” affidavit – removal (same penalty for Foreign Service)

39. Gifts to official supervisors¾soliciting contributions for gifts or presents to those in superior official positions, accepting gifts or presents from U.S. Government employees receiving lower salaries, or making donations as a gift or present to official supervisors (exception:  this does not prohibit a voluntary gift of nominal value or donation in a nominal amount made on a special occasion such as marriage, illness, retirement, or transfer (22 CFR 1203.735-202(e)) – Removal (required by 5 U.S.C. 7351) (same penalty for the Foreign Service)

Read more here: 3 FAM 4540 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – CIVIL SERVICE

#

Advertisements

Snapshot: Douglas Factors

Posted: 3:34 am ET
[twitter-follow screen_name=’Diplopundit’ ]

 

For both Civil Service and Foreign Service disciplinary cases, a proposed penalty is based on the review of similar past discipline cases and the application of the Douglas Factors.  The 12 Douglas Factors are mitigating or aggravating factors that may affect the penalty imposed:

  • The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was repeated frequently.
  • The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
  • The employee’s past disciplinary record.
  • The employee’s past work record, including length of service, performance on thejob, ability to get along with fellow workers, and dependability.
  • The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties.
  • Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
  • Consistency of the penalty with any applicable agency table of penalties.
  • The notoriety of the offense or its impact upon the reputation of the agency.
  • The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
  • The potential for the employee’s rehabilitation.
  • Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, bad faith, or malice or provocation on the part of others involved in the matter.
  • The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), the Merit Systems Protection Board established criteria that supervisors must consider in determining an appropriate penalty for misconduct. See the Office of Personnel Management Web site for a complete list (https://www.opm.gov/policy-data-oversight/employee- relations/reference-materials/douglas-factors.pdf).

#

No Publicity Zone — 2012 Judicial Actions Involving Foreign Service Grievance Board Rulings

— Domani Spero

We’ve  heard from the FS grapevine about an agreement that there will be no publicity of grievance results.  If that’s true, well, that’s a terribly bad agreement, right?

So if you want to keep up with Foreign Service grievance cases that went to court, you can check FSGB’s annual report to Congress which details judicial actions related to Board cases during the year.   We have listed them below from the 2012 report and have included the links to PDF files for all the court rulings but one.  In he future, most of the cases should be available via the GPO but if not available there, you can also try looking them up using pacer.gov (requires registration and payment for document view/download).

Karl Hampton v. Tom Vilsack | PDF

Karl Hampton is a former Foreign Service Officer with the Department of Agriculture who was terminated for cause after a hearing before the Board in 2007. He subsequently filed a Title VII suit against USDA, claiming discrimination on the basis of race, retaliation for engaging in protected activity, and a hostile work environment. Last year the District Court for D.C. granted USDA’s motion for summary judgment on nine of the ten counts alleged, and later dismissed the tenth count. Karl Hampton v. Tom Vilsack, 760 F. Supp. 2d 38 (D. D.C. 2011). Hampton appealed that decision. In a de novo review, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the District Court’s ruling. Karl Hampton, Appellant v. Tom Vilsack, Secretary, United States Department Of Agriculture, Appellee, 685 F.3d 1096; (U.S. App. D.C. 2012).

Richard Lubow, et al., v. United States Department of State, et al., | PDF

The plaintiffs in Richard Lubow, et al., v. United States Department of State, et al., 2013 U.S. Dist. LEXIS 10780, (D.D.C. 2013) were five Diplomatic Security Agents who had served in Iraq in 2004. They grieved the Department’s application of a cap on their premium pay and its decision not to grant them a waiver of repayment of the amounts that the Department had paid them in excess of that cap. The FSGB concluded that, contrary to the Department’s findings, the grievants were not at fault in incurring the overpayments and thus were eligible for a waiver of their debts. However, the Board also found that it was within the Department’s discretion to decline to grant the waivers, and that the Department had appropriately considered the relevant factors and had not abused its discretion in denying the waivers. The District Court affirmed those findings and granted summary judgment in favor of the Department.

Jeffrey Glassman v. the U.S. Department of State (unable to locate this case. See this article from WaPo: Disabled but determined, U.S. diplomat Jeffrey Glassman sues over forced retirement)

In an order dated September 25, 2012, Judge Rosemary Collyer of the District Court of D.C. dismissed three counts of the plaintiff’s claims in Jeffrey Glassman v. the U.S. Department of State, et. al., Civil Action No. 10-1729, as well as both the Department of State and the Foreign Service Grievance Board as defendants, on procedural grounds. Glassman is a former officer of the Department of State who grieved his involuntary retirement, claiming it was a result of his disability and therefore illegal. The Board denied Glassman’s claim. Glassman appealed that decision to the district court, while also independently claiming a violation of the Rehabilitation Act. While dismissing three counts and two defendants, the court ordered the case to proceed on Glassman’s remaining claim, that the Foreign Service precepts have a disparate impact on him and others with disabilities because of their emphasis on unusually difficult or dangerous assignments, in violation of the Rehabilitation Act. The Secretary of State, as head of the agency, remained as the sole defendant.

Richard Baltimore, III v. Hillary Clinton | PDF

In Richard Baltimore, III v. Hillary Clinton, 2012 U.S. Dist. LEXIS 153253 (D.D.C. 2012), former Ambassador Baltimore appealed a decision by the FSGB sustaining charges by the Department of State involving misuse of an official vehicle and failure to report the gift of a rug, that resulted in a 45-day suspension without pay. Baltimore challenged the Board’s decision as arbitrary and capricious. The D.C. District Court upheld the Board’s reasoning and decision.

Yamin v. United States Department of State | PDF

On November 19, 2012, Jeremy Yamin petitioned the D.C. District Court to review the FSGB’s May 23, 2012 order denying in part his request for attorney fees incurred in a grievance appeal. Yamin is a Department of State officer who had received a one-day suspension in a disciplinary action. In his appeal to the FSGB, the Board upheld the charge, but found the one-day suspension to be excessive and reduced the penalty to an admonishment. Yamin requested attorney fees and expenses in the amount of $71,645.48. The Board approved $12,385.03, denying the rest. Yamin requested a review of this decision.

 

* * *